POLITICS
01/11/2019 10:09 EST | Updated 01/15/2019 10:57 EST

Long-Term Expats Have Constitutional Right To Vote In Canada's Elections, Supreme Court Rules

The rule had been in place for 25 years.

Chris Young/CP
A voter casts a ballot in the 2011 federal election in Toronto on May 2, 2011.

OTTAWA — A law that stripped Canadians of their voting rights if they lived outside the country for more than five years was unconstitutional, the Supreme Court of Canada ruled Friday.

More than one million Canadians living abroad were affected by the rule, which had been in place for 25 years before it was repealed in December.

"Any salutary effects of ensuring electoral fairness are clearly outweighed by the deleterious effects of disenfranchising non-resident Canadians who are abroad for five years or more," wrote Chief Justice Richard Wagner in the judgment.

Wagner called the benefits of the legislation that barred long-term expatriates from voting "illusory and speculative." He added that it is "unclear how the fairness of the electoral system is enhanced when long-term non-resident citizens are denied the right to vote."

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Kate Oja, counsel with the B.C. Civil Liberties Association, said the decision "reinforces the right to vote as a fundamental right and the cornerstone of democracy – not something that Canadians must earn from the government." The BCCCLA was an intervener in the case.

The majority 5-2 decision stems from a Charter case involving two Canadians who claimed their rights were violated after discovering they could not vote in the 2011 election on the basis of residency — both men had lived outside of Canada for more than five years.

Dr. Gillian Frank is a Canadian who now resides in Princeton, N.J., and is completing postdoctoral studies at Brown University. He and Montreal-born Jamie Duong, an I.T. specialist who lives Fairfax, Vir., brought their case to the Ontario Supreme Court in 2012.

Under the Canada Elections Act at the time, voting rights were extinguished for Canadians who lived outside of the country for more than five consecutive years. Members of the Canadian Forces and diplomats were exempt from the rule.

The five-year stipulation was repealed last month after Bill C-76, the government's election modernization bill, received royal assent.

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The rule became law in the twilight of Progressive Conservative prime minister Brian Mulroney's government in 1993 and was legislated by Liberals who took power later that year.

It was a legislative cap to a debate that had unfurled around citizenship, with questions raised about how the breadth of an expat's understand about the country's affairs and whether allowing non-residents to vote sullies the fairness of Canada's elections.

However, the five-year countdown to disenfranchisement could be reset with short visits back to Canada. That was the case until 2007, when Stephen Harper's Tory government began to more strictly enforce the five-year rule.

The case found its way to the Supreme Court after Frank and Duong won their challenge in 2014. The presiding judge stated at the time that the Canadian Charter of Rights and Freedoms protects the right of every citizen to vote regardless of residency.

Matt Kwong/CP handout
Gill Frank is seen in this 2015 handout photo taken in New York City.

The federal government appealed with a social contract argument, which is one squared on the premise that giving long-term expats the right to vote is unfair to those who live in Canada, whose lives are heavily impacted by the laws made by elected representatives.

Weeks before an appeal hearing in late 2014, Conservatives introduced legislation dubbed the "Citizen Voting Act" to stop expatriates from so-called "vote shopping." It sought to change a rule that allowed expatriates on the international register of electors to vote by special ballot in one riding of their choice. Only after their permanent return to Canada could they vote in a different riding.

Conservatives proposed non-residents vote only in the last riding they resided in.

The bill was criticized by NDP and Liberal MPs as a voter suppression tactic. Some legal experts were also surprised the government didn't wait until the outcome of the appeal before introducing the Citizen Voting Act.

In 2015, the Ontario Court of Appeal agreed with the government in a split two-to-one decision. Recently enfranchised long-term expatriates became disenfranchised again.

The Citizen Voting Act was abandoned in committee.

'A Canadian is a Canadian, is a Canadian'

The issue became election campaign fodder later that year. Restoring the right to vote to long-term expatriates became a campaign plank for the Liberals. Leader Justin Trudeau notably proclaimed "a Canadian is a Canadian, is a Canadian" — a line borrowed from Tory MP Deepak Obhrai.

Five months after the Liberals came to power, the Supreme Court decided to hear Frank and Duong's appeal. In late 2016, Liberals tried to adjourn the case by telling the top court legislation was in the works to repeal the law. Regardless, the Supreme Court went ahead with hearing arguments last year.

The government introduced its omnibus electoral reform Bill C-76 in April as a means to fulfill its pledge to expats.

With a general election on the horizon, Conservatives accused the government of being sly and questioned the Liberals' renewed push to amend the election law before the 2019 vote.

In November, Toronto Sen. Linda Frum warned that the government was being "dangerously naive" on possible election meddling in Canada.

Sean Kilpatrick/CP
File photo of the Supreme Court of Canada in Ottawa on July 10, 2012.

"All of this is being done quietly, presented as technical changes with very little scrutiny by Parliament or the media... Let me repeat: We are potentially, increasing the number of voters in the next Canadian election by more than the number of votes cast in the four Atlantic provinces in the 2015 election," she said at the time.

But the chief electoral officer has a different set of numbers to contextualize the issue. Citing comparable American expatriate voting statistics and patterns, Stéphane Perrault told HuffPost Canada last year that he estimates around 30,000 expat Canadians will exercise their new voting rights.

'Very difficult' for governments to justify voting limitations: Constitutional lawyer

Following Friday's Supreme Court ruling, constitutional lawyer Andrew Bernstein noted the recent repeal of the residency requirements for expatriate voting doesn't prevent a future government from bringing in similar restrictions.

What's interesting about this particular case, Bernstein explained, is "the court kind of goes out of its way to say the administration of elections — we should be deferential to Parliament. But on the fundamental question of who gets the right to vote and who doesn't get the right to vote, we're going to take a pretty rigorous approach and we're going to uphold the right to vote pretty strongly."

I would say that the majority's decision, the decision of the chief justice, at least suggest that it's going to be very difficult to justify limitations on voting for non-residents.Constitutional lawyer Andrew Bernstein

The justices who agreed that the rule was unconstitutional stated there was "no evidence" the extension of voting rights to non-residents would harm the integrity of Canadian elections.

Bernstein, a partner at Torys Appellate Group, has frequently appeared before the Supreme Court. He explained because the Liberals repealed the rule barring long-term non-residents from voting, the ruling has narrow significance on Canadians' day-to-day lives.

The justices who wrote the dissenting opinion argued it's fair to have a rule in place to demarcate the line between short-term and long-term residents.

Justices Russell Brown and Suzanne Côté said that there are cases where limits to a person's right to vote can be justified. They argued Parliament needs to have flexibility to legislate "in pursuit of philosophical, moral or otherwise normative considerations" and called the majority's decision on the appeal a "regressive development."

The ruling provides fodder for interesting discussion, Bernstein explained in an interview, but it doesn't carry huge practical significance to practicing lawyers. Though it does serve as a reality check for governments, current and future.

"I would say that the majority's decision, the decision of the chief justice, at least suggest that it's going to be very difficult to justify limitations on voting for non-residents," he said.

With previous files from Althia Raj